Supreme Court speaks on ‘backdoor’ hearsay and confrontation, or does it?
The Supreme Court ruling in Williams v Illinois demonstrates the impact of Michigan’s Rule of Evidence 703 on backdoor hearsay.
In Williams, the Supreme Court took up the issue of whether the confrontation clause is violated when a DNA analysis showing a “match” not admitted as evidence but refer to in court in front of the fact-finder by an expert who did not conduct the analysis. MRE 703 requires that the facts or data shall be in evidence before an expert may rely on them.
In Williams v Illinois, an expert witness from the state crime lab who was called by the prosecution testified and made reference to a DNA analysis performed by a private lab on donor semen swabbed from the victim. At the time of the analysis, the rape was unsolved and, critical to the plurality opinion, there was no one under arrest for the crime. The expert who testified was not even affiliated with the lab, nor did he perform the work. The result of the DNA analysis was never admitted into evidence. The question for the court was whether Crawford v. Washington, 541 U. S. 36, 50 (2004), bars an expert from expressing an opinion based on facts made known to the expert but about which the expert is not competent to testify?
In a plurality opinion signed by four justices, the court held that the confrontation clause was not offended. Five justices agreed that the reference by the expert to the DNA profile was not a testimonial statement. The court held that the DNA profile in the Williams case was not testimonial because it did not bear the indicia of an out of court statement offered to prove the guilt of the accused.
There is a second part of the plurality opinion:
“As a second, independent basis for our decision, we also conclude that even if the report produced by Cellmark had been admitted into evidence, there would have been no Confrontation Clause violation. The Cellmark report is very different from the sort of extrajudicial statements, such as affidavits, depositions, prior testimony, and confessions, that the Confrontation Clause was originally understood to reach. The report was produced before any suspect was identified. The report was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose. And the profile that Cellmark provided was not inherently inculpatory. On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today.”
The 5th Justice to agree with the result but not the reasoning was Justice Thomas. In his concurring opinion, Justice Thomas agreed with the result but only because the DNA analysis did not bear the solemnity of a sworn statement that a lab report produced and signed by a crime lab analyst.
The plurality opinion assumed that safeguards would be utilized to avoid confusing the fact-finder about what the expert’s opinion was based on and what facts that supplied the basis were not proved:
“First, trial courts can screen out experts who would act as conduits for hearsay by strictly enforcing the requirement that experts display genuine “scientific, technical, or other specialized knowledge” to help the trier of fact understand the evidence or determine a fact at issue. Fed. Rule Evid. 702(a). Second, experts are generally precluded from disclosing inadmissible evidence to a jury. Third, if such evidence is disclosed, a trial judge may instruct the jury that the statements cannot be accepted for their truth, and that an expert’s opinion is only as good as the independent evidence establishing its underlying premises. Fourth, if the prosecution cannot muster independent admissible evidence to prove foundational facts, the expert’s testimony cannot be given weight by the trier of fact,” Pp. 25-27.
The court also held that such a method is limited to bench trials.
There are two things that are important for the lawyer in a Michigan case in our state trial courts: the rules of evidence prohibit “backdoor hearsay.” Under MRE 703, the facts or data on which the expert relies shall be in evidence. The other aspect of the Williams case is the court’s analysis that the DNA analysis occurred while the rape was still unsolved and no one was arrested. The plurality analogized this situation to the statement of the shooting victim in Michigan v Bryant identifying his assailant. The Court used the “primary purpose” test expanded by Michigan v Bryant to find that the DNA analysis was not a testimonial statement. That distinguishes the Williams case from Melendez-Diaz and Bullcoming in which the crime was completed, a suspect arrested and the analysis had no other purpose but to prove a fact in the case.
Mike Nichols is author of the “OWI Handbook” by West Publishing, an associate member of the American Academy of Forensic Science and co-author of the updated chapter “DUI Mathematics” also by West Publishing. He is a recent graduate of the Gas Chromatography Course held at Axion Laboratories in Chicago